Education Bill

MEMORANDUM SUBMITTED BY THE DEPARTMENT FOR EDUCATION AND THE DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS TO THE PUBLIC BILL COMMITTEE ON CLAUSE 65 (E 101)

Reference: EBCC/2011/Note 17

1. To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in Clause 65. It is submitted jointly by two Government departments as responsibility for the Apprenticeship programme to which Clause 65 applies is shared across the Departments for Education, and for Business, Innovation and Skills.

Policy background

2. Apprenticeships are the Government’s flagship skills programme and a key route for Raising the Participation Age in learning. The measures in this clause are intended to ensure that young people who secure an Apprenticeship with an employer can rely on Government funding for their training. The measures will apply to young people aged 16-18 who will be affected by Raising the Participation Age, and also to young people aged 19-24 who have been in local authority care or who have learning difficulties and/or disabilities. We are extending eligibility up to age 24 for these two groups in recognition that some young people may not be ready to make use of the ‘offer’ by age 18 and need longer to reach the level required to secure an Apprenticeship. This is part of the Government’s commitment to vulnerable groups.

3. The clause achieves this effect by placing a duty on the Chief Executive of Skills Fundin   g ("the Chief Executive") to fund Apprenticeship training by securing the provision of proper facilities for every eligible young person in the specified groups set out above when they have secured an Apprenticeship opportunity. This means that young people in these groups who secure an Apprenticeship can be sure their training will be funded and that this will take priority if future economic circumstances were to restrict Government investment in training.

4. This redefined Apprenticeship ‘offer’ replaces an earlier Apprenticeship ‘offer’ which was introduced in the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009) but which has not yet been commenced. This placed a duty on the Chief Executive to find an Apprenticeship place for all suitably-qualified young people in these same groups who wanted one. Since the Act also stipulated that Apprenticeships must be paid jobs, this would have meant the Chief Executive having to ensure a job with an employer for every young person eligible for the ‘offer’.

5. In practice this would be unrealistic and undeliverable, as neither the Chief Executive, nor the Government, is in a position to tell employers whom to employ, or to create jobs. Government can provide funding to support training but employers create Apprenticeship opportunities. The re-defined duty in the Education Bill - to prioritise funding for Apprenticeship training when eligible people in the specified groups have secured a place – is a robust and straightforward deal for employers and learners. It reinforces the Government’s commitment to Apprenticeships as an excellent start to a career for young people while safeguarding the employer-led nature of the programme which is the key to its success and expansion.

Order-making powers in Clause 65

6. Clause 65 achieves its effect by inserting sections 83A, 83B and 83C into ASCLA 2009. It contains three order-making powers.

Definition of disability and/or learning difficulty

7. Section 83A(6) (b) gives a power to the Secretary of State to specify, through regulations, the description of young people under 25 to whom the duty will apply. In practice, as the Explanatory Notes to the Bill make clear, we intend that these regulations will specify the definition of disability and/or learning difficulty to be used in establishing eligibility for the ‘offer’. The same approach to defining this group was taken under ASCLA 2009 for the original Apprenticeship ‘offer’, and for the same reasons set out below.

8. We were advised by the disability organisations with which we work that there was no existing definition of disability and/or learning difficulty that would ensure that the ‘offer’ would target those who really need it. By choosing to specify this group in regulations, as we intended to do under the original ASCLA 2009 ‘offer’, we are better able to prescribe with precision the young disabled people for whom the ‘offer’ is intended. These disability organisations are developing advice for us on an appropriate definition that will also be acceptable to disabled people.

9. Our advice on disability comes from an expert working group of external disability and skills organisations convened and chaired by Peter Little OBE, Independent Chair of the DfE Advisory Group on LLDD and Chair of SKILL. The group focuses solely on Apprenticeships. Current member organisations include: ALLFIE (the Alliance for Inclusive Education), SKILL (National Bureau for Students with Disabilities), RNIB and the National Children’s Bureau; MENCAP and RNID have also been involved, and the Chair is currently reviewing the membership. In consultation with the Working Group Chair, officials also periodically convene and chair a wider Reference Group which enables other organisations to contribute to the Working Group’s deliberations. The Reference group is expected to meet next in June 2011 to discuss the Working Group’s proposals for a disability definition for the Apprenticeship ‘offer’.

10. The definition of disability we agree through these advisory and consultative arrangements will form the basis of the regulations we will draft under this power. The power is subject to the negative resolution procedure, which will allow a reasonable level of scrutiny by Parliament, which we believe is appropriate in the circumstances.

Amendments to the groups covered by the Apprenticeship ‘offer’

11. Section 83A(12) gives the Secretary of State a power to make an order to amend the description of the groups of people to whom the re-defined Apprenticeship ‘offer’ applies. These are the groups described in paragraph 2 of this note above. This power would enable us to manage the ‘offer’ responsibly by prioritising funding where absolutely necessary in the event of very severe budgetary constraints. We envisage it would be used for this in exceptional circumstances only. Conversely this power would also give the Government the flexibility to extend the coverage of the ‘offer’ further by adding other eligible groups without needing to introduce primary legislation.

12. This power would amend primary legislation and is subject to the affirmative resolution procedure, which is appropriate in these circumstances.

Suspension of the ‘offer’ by sector or level

13. Section 83C give a power to the Secretary of State to suspend the Apprenticeship ‘offer’ in relation to a specified skill, trade or occupation or to Apprenticeship training at a specified level. This reproduces a similar power included in the ASCLA 2009 ‘offer’, which the Education Bill is repealing. While the amendment power described above focuses on groups of people covered by the ‘offer’, this power is different because it is concerned with the sectors or levels in which Apprenticeship training might be provided under the ‘offer’.

14. This order-making power would give us the flexibility to respond if, at any point in the future, there was such an oversupply of existing apprentices or other skilled workers within a particular occupation, and at a particular level, that further Government investment in training additional workers was not justified. It would also enable us to act in the event of any serious concerns raised about the quality or relevance of an Apprenticeship framework, to the extent that we wanted to withdraw funding, at least until the situation was remedied. The power would also enable us to target funding for Apprenticeship training under the ‘offer’ if Government were to decide, at any future point, to focus its investment in particular sectors of the economy.

15. We would expect to draw on evidence and advice from bodies such as Sector Skills Councils and the UK Commission for Employment and Skills, as well as Government’s own sources, in deciding whether any such order was necessary, and what its nature and extent should be.

16. Any suspension of the ‘offer’ under this power would last for a maximum of two years. This power is subject to the negative resolution procedure, which will allow a reasonable level of scrutiny by Parliament, which we believe is appropriate in the circumstances.

Timing

17. The Apprenticeship ‘offer’ will be commenced in 2013, to fit in with the timescale for raising the Participation Age in learning. We would expect the Regulations under new section 83A(6)(b), setting out the prescribed description of disability for the purposes of eligibility for the ‘offer’, to be in place as soon as possible after commencement. We anticipate that it will take a minimum of three months to draft, make and lay the regulations. However we know that disability organisations and the learning and skills sector will need to know the chosen definition as early as possible to enable them to plan ahead, and we will make sure this is communicated as soon as the definition we propose to use is agreed with the disability organisations advising us.

18. Clearly, there is no timescale for orders under the other two powers as these would be used only if the circumstances for which they are intended were to arise.

March 2011